What is the law where you live concerning use of Aikido or martial arts in defending your property, yourself or loved ones?

In the state of Ohio in The United States from http://tenchi-kenpo.com/bbpapers/kcookson.html

"Ohio law clearly and unequivocally recognizes the right of self-defense. When an otherwise innocent person has a bona fide belief that he is in imminent danger and further believes that his only means of escape from such danger is the use of deadly force, and when no duty to retreat has been violated, then the defense is available. For the skilled martial artist, he will be need to exercise extreme caution before employing his skills to be certain that his use of force is appropriate under the circumstances. Moreover, as a trained fighter, he will be expected to recognize danger at its early onset and to take appropriate actions to retreat, if necessary."

David

Mattias Bengtsson

01-13-2008, 06:06 PM

so.. to paraphrase:
With great ability comes great responsibility.

Doing some research ive discovered there seems to be a tendency here in Sweden to expect martial artists to be more disciplined and to be able show greater restraint when it comes to defending one self.

Don

01-13-2008, 07:14 PM

I'm no lawyer but I've heard too many discussions about this that suggest as you say the more the ability the more the expectation of knowing appropriate use of force. If a drunk takes a swing at you and you irimi nage him and he breaks his neck, you might have a problem. If you have been taking a martial art for 2 months maybe not nearly as much as someone who has 10 or more years and perhaps teaches.

You also have to know when to break off the use of your art. If a dude attacks you and/or your family and you use your art to stop his attack and he turns and runs in an effort to get away and you continue to press the counterattack and injure or kill him, at least in some states YOU could find yourself as the aggressor. Any good lawyer should be able to argue that your or families lives were in danger, but it is certainly not out of the realm of plausibility that you could find yourself defending your use of force if you carried it too far and the assailant was trying to escape you.

Appropriate use of force is something all martial artists, particularly those with many years of experience need more knowledge of, imho. Unless you LIKE getting caught up in the legal system.....

Michael Hackett

01-13-2008, 07:27 PM

The duty to retreat is a vexing concept and not too many of the states have that in their statutes. Most are like California and haven't an articulated duty to retreat. If a reasonable person believes that he, or another, is in imminent danger, then he may use force in defense. He may use only that force that is reasonable and necessary.

That's where things get murky in terms of the martial arts. At least here in California we do not have the "I must register my hands as deadly weapons" myth going for us. However, you may not use more force than necessary. For a gross example, knocking an assailant out with a roundhouse kick to the head would probably be perfectly legal. If you continued and broke his arm and ribs after he was unconcious and no longer a threat, it would surely be considered a battery with great bodily harm - a felony and aggravated assault for those CSI fans reading this.

In summary, you can use Aikido in California to defend yourself or others, but you can't use too much Aikido. You don't have to run away, but you do have to stop once the threat is neutralized and you are no longer in danger.

Of course all this is viewed by the emphemeral "reasonable man" standard. A nice way for the legislators to say "Use some common sense."

BK Barker

01-14-2008, 06:11 AM

In summary, you can use Aikido in California to defend yourself or others, but you can't use too much Aikido. You don't have to run away, but you do have to stop once the threat is neutralized and you are no longer in danger.

Isn't that a main part of Aikido.... neutralizing the threat???

Taliesin

01-14-2008, 06:56 AM

This a martial Arts issue generally rather than an Aikido one. To be honest my understanding of UK law is that if your are attavked or have a 'reasonable'and honest belief you are entitled to use 'reasonable force' to defend yourself.

There is somewhat confusing case law that says on one hand you are not required to 'judge to a nicety' the force you use. But it cannot be disproportionate. - This is generally understood to be any follow up use of force once the attack is netralised. For us Aikidoka the question would be whether a restraint hold would bring us within the disproportunate force after the fact. Personally I doubt it. - the big question would be as posted above - Would your skills be such that you can reasonably be expected to defend yourself in a manner that causes less harm? I would expect it to be termed in this manner as the arguement that greater skills necessarily require greater judgement and contol that those of an unskilled individual.

However this is pure speculation as it's outside my area

DonMagee

01-14-2008, 07:03 AM

In my state, you can kill a man if you feel he is threatening you, your property, or others. So you can kill a man for taking your wallet.

PhilMyKi

01-14-2008, 08:05 AM

To be honest my understanding of UK law is that if your are attavked or have a 'reasonable'and honest belief you are entitled to use 'reasonable force' to defend yourself.

This is correct in the roundabout way. I always remember 'the man on the Clapham Omnibus' example to cover the definition reasonableness. The man being Mr Joe Public.

The level of threat is perceived by the victim and it is for them to react accordingly to the scale of the threat. If a person moves to punch you in the arm it is unreasonable to break their jaw (highly unreasonable). If a person says they have a knife, it is reasonable to break their wrist - you do not need to see the knife. The law of self defence stops once the threat has passed. If you have rendered the assailant unable to carry out their attack as perceived and you continue to 'beat on them' then you step into the realms of the Offences Against the Persons Act and a world of trouble (some of which carry a life sentence! s.18 - GBH with intent. Simply put by my Law Prof as smash a beer glass in someones face - GBH, bring it back through - section 18).

You do not need to warn anyone that you know martial arts (I think it sounds really stupid anyway), but you are expected to realise that you skills can inflict more damage than the 'man on the bus' can and build this into your reaction.

It has been a very long time since I studied Law, so if I am totally wrong - sorry :D . But, this is how I remember it.

Taliesin

01-14-2008, 08:16 AM

Philip - I agree that reasonable is normally defined by Mr Joe Public (riding the Clapham Omnibus) - the difficulty is what Joe would think is reasonable for someone trained in martial arts.

As far as the GBH 'glassing' examples - S20 Reckless Causing GBH - up to 5 years, S18 Causing GBH with intent S18

PhilMyKi

01-14-2008, 08:51 AM

Philip - I agree that reasonable is normally defined by Mr Joe Public (riding the Clapham Omnibus) - the difficulty is what Joe would think is reasonable for someone trained in martial arts.

As far as the GBH 'glassing' examples - S20 Reckless Causing GBH - up to 5 years, S18 Causing GBH with intent S18

Like I said, it has been a long time. I have long since decided that the law was not the career for me! IMHO reasonable is stopping the attack without causing unnecessary harm.

Reasonableness is always subjective, what test would you put in place to to measure? Is it at all possible? If it was only you and the assailant in a dark alley, can you prove that reacted with reason?

In my example for s.18 I tried to illustrate that bringing the glass back across the face indicates intention, possibly there are many better examples. But I typed a quick response at the end of my lunch break.

philippe willaume

01-14-2008, 10:06 AM

Hello

In the UK, it is my understanding that self defence is based on the belief of the defendant that he, others or his property are in and immediate threat, (as well as when assisting or performing a legal arrest or prevent a crime.).
It provides people with the right to act in an otherwise unlawful manner.

The circumstance upon which one used self defence is subjective (depends on the person in question), but the proportionate and reasonable use of force is objective (the reasonable man, taking in account the subjective belief of the defendant.)

Retreating or seeking police assistance can be used to show that the party did not want to use violence but there is no obligation to retreat under UK law.
In fact self-defence can be available even if one provoked and started the altercation, (provided that the response of the party he attacks is out of proportion.)
In tem of self defence, you can use a pre-emptive strike.

Basically when the immediacy of the threat has been removed, you loose all case to use self defence as a legal defence.
So if there is no other threat to you or other, stabbing, shooting, kicking, striking, cutting or bludgeoning someone on the floor, in a lock, or is fleeing will be a good way to see what ABH/GBH (actual bodily harm and grievous bodily harm) or manslaughter can get you.

In 2005, there was talk of changing the reasonable to grossly disproportionate. I think that resurfaced late last year I do not know what happened to that.

As far as I understand the legal meaning of disproportionate force, it concerns the weapons not the actual amount of force.

Ie if someone intent to hit you in the shoulder , breaking his jaw with a punch or a kick is perfectly fine as long as you believe that he was going to assault you (or he is actually punching you) (open hand vs open hand)

Breaking his jaw with a bokken, jo, queue or any bat like implement would be a disproportionate use of force weapon against open hand).

Phil

lbb

01-14-2008, 10:43 AM

In my state, you can kill a man if you feel he is threatening you, your property, or others. So you can kill a man for taking your wallet.

I really doubt that your state is handing out "get out of jail free" cards that allow anyone who feels that his/her property is threatened to kill the source of the threat. Even when you feel your person is threatened, I suspect the truth is a little more nuanced. If the cops come to a scene and find one live person and one dead one, you won't get the following exchange:

Whenever a body gets produced, there's 'splainin' to do, and the authorities have to be convinced that the killing was reasonable and doesn't warrant further action. People have made the "I felt threatened" argument before, been taken to trial, lost and gone to prison because the DA didn't think that their response was reasonable, and the jury agreed with the prosecutor. In a society governed by laws, it's never all about what you think.

philippe willaume

01-14-2008, 11:03 AM

I really doubt that your state is handing out "get out of jail free" cards that allow anyone who feels that his/her property is threatened to kill the source of the threat. Even when you feel your person is threatened, I suspect the truth is a little more nuanced. If the cops come to a scene and find one live person and one dead one, you won't get the following exchange:

Whenever a body gets produced, there's 'splainin' to do, and the authorities have to be convinced that the killing was reasonable and doesn't warrant further action. People have made the "I felt threatened" argument before, been taken to trial, lost and gone to prison because the DA didn't think that their response was reasonable, and the jury agreed with the prosecutor. In a society governed by laws, it's never all about what you think.

well there is always Oklahoma....;) and that is just to stay local

phil

Taliesin

01-14-2008, 12:01 PM

For martial artists I repeat the following point

reasonable is normally defined by Mr Joe Public (riding the Clapham Omnibus) - the difficulty is what Joe would think is reasonable for someone trained in martial arts.

Michael Hackett

01-14-2008, 04:40 PM

For Bryan: Yes, neutralization is the essence in my mind. What I was driving at though is that, at least here, you can pin the individual out as you await the police, but you can't take the pin to a dislocated shoulder or something similar unless the danger continues. If you pin 'em well, that should be the end of it. If you don't, the fight is on.

For Mary: You have perfectly described the quandry....what the jury thinks of what you thought is the issue.

Here in California we have the concept of ADW, an assault with a deadly weapon. Almost anything can be considered a deadly weapon if it is used that way, including martial arts training. The list is endless and judged on a case-by-case basis, largely on the intent of the user. In the Aikido realm, doing a simple ikkyo and pinning your assailant would probably be fine most of the time. Doing a particularly dangerous throw on the concrete might not be, depending on the nature of the attack. A little old lady in tennis shoes will probably be given more latitude than a young male football player in exactly the same scenario. Ah, that reasonable man we have to satisfy.

Jimmy "The Weasel" Fratianno supposedly said that a gun and a kind word will get you further than a kind word alone. Maybe he was right some times.

lbb

01-14-2008, 09:07 PM

Here in California we have the concept of ADW, an assault with a deadly weapon. Almost anything can be considered a deadly weapon if it is used that way, including martial arts training.

Yes, and (according to my law student ex) "deadly force" is commonly defined in US jurisdictions as force that could (not necessarily did) result in death or serious bodily injury. Hence, if you break someone's arm or dislocate their shoulder, you could be said to have used "deadly force". Funny how little common-sense definitions are worth in court.

Nick P.

01-14-2008, 10:26 PM

What is the law where you live concerning use of Aikido or martial arts in defending your property, yourself or loved ones?

In the state of Ohio in The United States from http://tenchi-kenpo.com/bbpapers/kcookson.html

"Ohio law clearly and unequivocally recognizes the right of self-defense. When an otherwise innocent person has a bona fide belief that he is in imminent danger and further believes that his only means of escape from such danger is the use of deadly force, and when no duty to retreat has been violated, then the defense is available. For the skilled martial artist, he will be need to exercise extreme caution before employing his skills to be certain that his use of force is appropriate under the circumstances. Moreover, as a trained fighter, he will be expected to recognize danger at its early onset and to take appropriate actions to retreat, if necessary."

David

Nothing productive to contribute....except in Bexley, Ohio "Ordinance number 223, of 09/09/19 prohibits the installation and usage of slot machines in outhouses."
from http://www.dumblaws.com/laws/united-states/ohio

DonMagee

01-15-2008, 07:06 AM

I really doubt that your state is handing out "get out of jail free" cards that allow anyone who feels that his/her property is threatened to kill the source of the threat. Even when you feel your person is threatened, I suspect the truth is a little more nuanced. If the cops come to a scene and find one live person and one dead one, you won't get the following exchange:

Whenever a body gets produced, there's 'splainin' to do, and the authorities have to be convinced that the killing was reasonable and doesn't warrant further action. People have made the "I felt threatened" argument before, been taken to trial, lost and gone to prison because the DA didn't think that their response was reasonable, and the jury agreed with the prosecutor. In a society governed by laws, it's never all about what you think.

Specifies that a person: (1) is justified in using deadly force; and (2) does not have a duty to retreat; if the person reasonably believes that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. Specifies that a person: (1) is justified in using reasonable force, including deadly force, against another person; and (2) does not have a duty to retreat; if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle.

Yes, you are going to go to probably get arrested. But a good lawyer should have no problem getting you proved innocent.

From a news article,

"At the end of the day, the law says if you have no other out and it appears you are about to get killed or seriously harmed, you don't have to send out a survey," said Scott Newman, the former Marion County prosecutor. "You can pull out a gun and defend yourself."
Just last month, Indiana became the third state to make clear that people have the right to use deadly force when threatened without first trying to back away. Indiana did not previously require residents to retreat before using a gun or other deadly weapon, but the new law clarified that point.

Here's another article where a police officer shot a person trying to kick his door down. He shot him though the door.

http://www.theindychannel.com/news/5591346/detail.html

No requirement to flee, warn, or detain. Just kill him because he might injure you.

Here, give it a read http://www.in.gov/legislative/ic/code/title35/ar41/ch3.html

But yes, you are probably going to end up in court if it is not cut and dry. But I think if someone is seriously threatening you, then killing them is the only option. Of course I think our dispute in this conversation is your interpretation of the word threatening.

If someone says "I'm going to kill you." That is not threatening. Now if he is moving at you screaming it, or if he is wielding a weapon, kicking your car or front door. Then the only safe option is to kill him.

Here is a situation from this weekend I was involved in (no I didn't kill anyone). I was at a 2 way stop. My wife was driving. She had come to a complete stop and started her turn left. A van came up on the other side of the road, rolled though the stop light and honked at us thinking apparently he had the right of way. My wife did not stop and finished her turn. This really ticked this guy off bad, he started riding our tail, flashing his lights and screaming/giving us the finger. I laughed about how silly it was he could get that worked up about it, then I realized he was following us. We were about two blocks away, we pulled into our sub-division and drove around the block twice, he was still following us. I told my wife, that we were to pull into our drive way. If he stopped and got out, I intended to kill him. Luckly, just as I said that, he turned off and left. I spoke with my friends in law enforcement about this. They believed that I would be in every right to stop this man. He was a serious threat to my wife, my property and myself. There was nothing to lead me to believe he was in his right mind, and he was following me. There was no way to know he was not armed, and I am not under any duty to flee, or retain him for police. Simply shoot first, find out what happened later.

I hope I never have to kill a person. But I am fully prepared to do so.

lbb

01-15-2008, 07:38 AM

Specifies that a person: (1) is justified in using deadly force; and (2) does not have a duty to retreat; if the person reasonably believes that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony.

Emphasis mine. We'll come back to it.

Yes, you are going to go to probably get arrested. But a good lawyer should have no problem getting you proved innocent.

If she/he is a good lawyer, he/she will not be trying to "[get] you proved innocent". It's the job of the prosecuting attorney to convince the jury that you are guilty beyond a reasonable doubt; it's the job of the defense attorney to convince the jury that that standard has not been met. In the case where you are discovered with a dead body at your feet, the defense attorney's job will be to establish that your use of force was reasonable -- which, in this context, means that the jurors will look at the tale your attorney spins, find it credible (i.e., believe that that's what happened), and conclude that it was a reasonable course of action for you to take. Your attorney may indeed succeed in doing that, but (unless the situation is so clear-cut that the DA doesn't even bring charges, in which case you wouldn't have a defense attorney) it's not going to be "no problem". It's going to take a lot of careful work that can easily backfire. That's why they get paid the big bucks.

But yes, you are probably going to end up in court if it is not cut and dry. But I think if someone is seriously threatening you, then killing them is the only option. Of course I think our dispute in this conversation is your interpretation of the word threatening.

We don't have a dispute. Your dispute is between your interpretation of the law and what would actually happen were you to kill someone. My point is simply that you can't just say, "Oh, I thought I was in danger," and take a walk. You will have to establish in the mind of the DA that your interpretation was reasonable, or you will go to trial, and then you will have to establish in the mind of the jury that your interpretation was reasonable, or you will go to jail. That is a matter of fact, not a matter of opinion.

Here is a situation from this weekend I was involved in (no I didn't kill anyone). I was at a 2 way stop. My wife was driving. She had come to a complete stop and started her turn left. A van came up on the other side of the road, rolled though the stop light and honked at us thinking apparently he had the right of way. My wife did not stop and finished her turn. This really ticked this guy off bad, he started riding our tail, flashing his lights and screaming/giving us the finger. I laughed about how silly it was he could get that worked up about it, then I realized he was following us. We were about two blocks away, we pulled into our sub-division and drove around the block twice, he was still following us. I told my wife, that we were to pull into our drive way. If he stopped and got out, I intended to kill him. Luckly, just as I said that, he turned off and left. I spoke with my friends in law enforcement about this. They believed that I would be in every right to stop this man.

I'm surprised that they didn't suggest that a better course of action would have been to lead him to the nearest police station rather than to your home.

He was a serious threat to my wife, my property and myself. There was nothing to lead me to believe he was in his right mind, and he was following me. There was no way to know he was not armed, and I am not under any duty to flee, or retain him for police. Simply shoot first, find out what happened later.

I hope I never have to kill a person. But I am fully prepared to do so.

Yes, and I hope you sleep well after having done so, and don't afterwards consider that you might have had a third choice (or a fourth one, or a fifth one, or...) as a pointed out in your incident above -- one that would have resulted in a better outcome than killing or being killed.

DonMagee

01-15-2008, 09:49 AM

Emphasis mine. We'll come back to it.

If she/he is a good lawyer, he/she will not be trying to "[get] you proved innocent". It's the job of the prosecuting attorney to convince the jury that you are guilty beyond a reasonable doubt; it's the job of the defense attorney to convince the jury that that standard has not been met. In the case where you are discovered with a dead body at your feet, the defense attorney's job will be to establish that your use of force was reasonable -- which, in this context, means that the jurors will look at the tale your attorney spins, find it credible (i.e., believe that that's what happened), and conclude that it was a reasonable course of action for you to take. Your attorney may indeed succeed in doing that, but (unless the situation is so clear-cut that the DA doesn't even bring charges, in which case you wouldn't have a defense attorney) it's not going to be "no problem". It's going to take a lot of careful work that can easily backfire. That's why they get paid the big bucks.

This is just semantics. Nothing more. Here you are attempting to prove you are smarter then I am by using my words to make me appear ignorant of the topic at hand. This adds no value to the discussion. Just an FYI. I did not think it necessary to go into detail on the legal process. It was sufficed to say that if you are justified, then you are probably going to be just fine.

We don't have a dispute. Your dispute is between your interpretation of the law and what would actually happen were you to kill someone. My point is simply that you can't just say, "Oh, I thought I was in danger," and take a walk. You will have to establish in the mind of the DA that your interpretation was reasonable, or you will go to trial, and then you will have to establish in the mind of the jury that your interpretation was reasonable, or you will go to jail. That is a matter of fact, not a matter of opinion.

See comment above. You are arguing common sense. I have already said this is true. I have also defined what I intended by the word threatened. At this point, you are repeated a reworded version of what I said in the previous post. If you are truly going to be prepared to kill someone, you better be prepared to defend your actions. I will always try to leave a dangerous situation within reason. If this can not be reasonably avoided, I will use violence until my attacker is no longer a threat.

I'm surprised that they didn't suggest that a better course of action would have been to lead him to the nearest police station rather than to your home.

Well, he was driving dangerously, stopping on the side of the road would leave me in a farm field alone with my wife and a (I can only assume) mad man in a murderous rage. To get to the police station would require driving 10 minutes on roads with speed limits of 55mph with this mad man tail gating us and driving very dangerously. This would put me and my family at risk much longer then the 3 minute drive back to my house.

I am not bound by law to flee. I am legally entitled to stand my ground and defend myself and my family. I should not have to live in fear of what others might do. I should not be required to put my life in the hands of people who are not even legally required to protect me (yes the police do not have to protect you). I should not be forced to put other drivers at risk by making this crazy man follow me. I have no idea what he might have in his van, maybe a gun? Maybe a knife? Maybe he will really go nuts and start ramming my little car? With the snow and ice this is even more dangerous. No the best course of action was to get to a safe position as quickly as possible and defend myself. A few rounds from the 45 will do that. No risk to my personal safety or the safety of other innocents.

What if cars were not involved? What if you were walking down a deserted road and a man was following you with his hands in his pockets, screaming obscenities at you and closing the space. He might be dangerous, he defiantly is threatening. He could be armed, his tone and language shows he is very angry with you. He is acting erratically. You have changed your path a few times and are sure he is following you. In a few moments he will be on top of you. Your home is just 10 feet away. You have a few choices:
1) Run and hope he won't catch you.
2) Keep walking and hope you can make it a few miles to the police department. (because this is a walking situation, we will say a 10 minute walk.)
3) Turn and engage the attacker in conversation. Try to calm him down and hope you can respond fast enough if he choices to attack you.
4) Run to your home and lock yourself inside. Call police and hope they get there before he can get inside. (based on response time in my area, not likely. The state, county, and city police will argue about it for a good 20 minutes before responding.
5) Continue to your home, and if he peruses, kill him.

In this case, I picked 5. I found it the safest course of action. I submit that he may of just been trying to scare us. I was aware of that. But I knew that if I went to my home, and he continued to follow, then his intentions are only one thing. To hurt us. My friends have all agreed. At this point you can not allow him to walk up to you. You can not give him time to formulate an attack. You do not want to approach and converse. You have no idea what he wants to do, only that he was made enough to follow you to your house with ill intent. If that man is stupid enough to get out of his van, and step on to your property, then he is lucky to even get a warning (although I would give one). Even if the DA decided to take it to court, I'm confident I would have made the right decision.

But that didn't happen. The man was smart enough to realize he was being stupid and go on his way.

And this just goes to show that fine line between deadly force and just avoidance. We attempted to avoid confrontation for as long as we felt safe. At that point I resolved to defend myself. To me self defense is only used in situations of life and death. I will never fight to disable nor disarm and attacker. The risk of failure is too high. I will only fight outside of the ring to do one thing, kill my attacker as fast as possible. If that ever happens in my lifetime, I would be greatly shocked. But that does not mean I should not have the resolve to do so.

Yes, and I hope you sleep well after having done so, and don't afterwards consider that you might have had a third choice (or a fourth one, or a fifth one, or...) as a pointed out in your incident above -- one that would have resulted in a better outcome than killing or being killed.
I will never second guess myself. As I've pointed out, those other options could easily end with me, my family, or others injured because of my desire to spare one mans life. Sorry, it's just not worth it. Even if I am wrong, and make a poor decision. I will feel justified in knowing it was the course of action I found correct at the time. A decision I am willing to die for if need be. I will accept the consequences of that action with pride, even if it means my own death. This is the essence of budo, to be willing to die for a cause, even if it is wrong and others would think you foolish or silly.

All a man can ask is to do what he feels is right at the time, and to learn from his mistakes. Regret solves no problems.

Ron Tisdale

01-15-2008, 10:16 AM

I see points on both sides...but I really appreciate being able to read these different perspectives.

Thanks,
Ron

Michael Hackett

01-15-2008, 10:20 AM

Don, even if you are acquitted in your use of force scenario, you have lost in many respects. Just the actual cost of bail, your defense team, loss of work, and a new go-to-court suit, you and your family may end up bankcrupt. Yes, I know the old adage of it being better to be tried by twelve than carried by six - I even agree with it. Take it from one who has investigated a lot of homicides over the years, it is a big, big step to take a life in any terms. Even if you're right, it can be costly in many ways. If there is any viable option, it may be the best course of action.

Unfortunately, without thinking, you have already placed yourself in legal jeopardy if you ever do take a life. Your earlier statements here will be found by the prosecution and they will amazingly pop up in court. I once worked a double murder in which one the participants made the bad joke that he bought his revolver to "shoot cans. Mexicans, Africans, Puerto Ricans." He also shot two Mexican nationals and had to explain his tasteless joke. That wasn't the tipping point, but he's doing 25 to life in prison today.

This ain't easy stuff to deal with and again, common sense goes a long way to lubricate our society. Sad too that common sense isn't all that common.

lbb

01-15-2008, 10:42 AM

This is just semantics. Nothing more. Here you are attempting to prove you are smarter then I am by using my words to make me appear ignorant of the topic at hand.

No, I'm not, Don. I'm trying to point out that when you kill someone, it becomes a legal matter -- and that in legal matters, these "semantics" that you so disdain have real and serious consequences. You can blow off what I'm saying by calling it "just semantics" (it isn't, but let that go). On this forum, nobody's definition or interpretation "wins". In a court, things are different. There, other people's interpretation of a word like "threatened" will matter more than yours, and there most certainly is a "winning" definition.

DonMagee

01-15-2008, 10:56 AM

Don, even if you are acquitted in your use of force scenario, you have lost in many respects. Just the actual cost of bail, your defense team, loss of work, and a new go-to-court suit, you and your family may end up bankcrupt. Yes, I know the old adage of it being better to be tried by twelve than carried by six - I even agree with it. Take it from one who has investigated a lot of homicides over the years, it is a big, big step to take a life in any terms. Even if you're right, it can be costly in many ways. If there is any viable option, it may be the best course of action.

Unfortunately, without thinking, you have already placed yourself in legal jeopardy if you ever do take a life. Your earlier statements here will be found by the prosecution and they will amazingly pop up in court. I once worked a double murder in which one the participants made the bad joke that he bought his revolver to "shoot cans. Mexicans, Africans, Puerto Ricans." He also shot two Mexican nationals and had to explain his tasteless joke. That wasn't the tipping point, but he's doing 25 to life in prison today.

This ain't easy stuff to deal with and again, common sense goes a long way to lubricate our society. Sad too that common sense isn't all that common.

I thought long and hard about what I wanted to say, from that exact viewpoint. I don't think I've said anything damaging. I've stated I hope to never have to kill anyone. But I have also stated, that if I feel it is the safest option for keeping my family safe within the realms of the law, that I will use it. That is a lot different then saying "If anybody messes with me, I'm going to shoot them!".

In the situation above, I attempted everything I thought could be reasonably and safely done to avoid confrontation. Once that is done, the only reasonable alternative is self defense. And I firmly believe the only safe mode of self defense is to disable or kill your attacker. With three caveats:

1) You should have no concern for your attacker. Mean to kill him, but if he is disabled, then you can leave. If you meant to disable then you have concern for your attacker, and you put yourself at far greater risk.
2) If you are not willing to kill, then you are ill prepared to stop an attacker who truly wants to hurt you.
3) Notice the use of the word attacker. I use this almost always. A self defense situation is not a fight. This is not a mutual throwdown between two drunks in a bar. That is not self defense. The guy who wants to beat you up for talking to his girl is not a self defense situation. To me, a self defense situation is when you are facing potential death. In my example in the above posts, you have an attacker who is irrational, angry, and by his actions it can only be taken that he means to harm us. If I was on the street and getting mugged, I'd hand my wallet over before I pulled a weapon, unless I thought he ment to harm or kill me. If I was attacked by a guy in a bar, unless I thought he had a weapon, I would evade and block until the bounces took him out.

But I am a man of principles. I would rather rot in jail then let anyone harm my wife.

Plus, I love the duality of martial artists, they talk about how they train to kill with a single blow, or to give and take life with a whim, or how they are too deadly to even spar. Yet they seem to shirk away from talking about the truth of what they are learning this for. If it is a battlefield art, as spouted often, then it is for killing.

Mattias Bengtsson

01-15-2008, 11:11 AM

What if you were walking down a deserted road and a man was following you with his hands in his pockets, screaming obscenities at you and closing the space.

What if you were walking down a deserted road, except for some man walking a bit further ahead of you at a slower pace.
As you are in a hurry to get to a friends house since its cold outside and youve forgotten your gloves so you walk quite fast, with your hands in your pockets.
Now, the problem is, you have Tourette's syndrome, so now and then you get these involountary tics and curse obscenities.
Youre a little lost and thinks that maybe you should ask that chap up ahead for directions. But as you apporach, he spins around with a gun in his hands telling you to back off you drugged out junkie and before you can explain yourself he shoots you, not once or twice but empties his clip in you..

Why? because it was appearant that you was on drugs and intending to harm him and he has a legal right to kill you if he feels threatened.

I'm not saying you shouldnt be allowed to defend yourself, just make sure there's really no other options or explanations first. Not even the police shoots first and ask questions later.

And if you think me using Tourettes as a example is grasping for straws, what if the man following you is talking on a hands-free cellphone, or maybe he is mistaking you for someone else and as he comes closer he realises that "youre not Joey"..

Taliesin

01-15-2008, 11:35 AM

I notice that this thread has diverted into general 'self-defence' law. If I can drag it back - what additional restrictions would be placed on you because of presumed martil arts ability.

Michael Hackett

01-15-2008, 12:00 PM

Don,

I owe you an apology for my "without thinking" comment. I'm sure you did think about what you wrote and I shouldn't have used that phrase. I intended to convey that you have stated your intentions in such a way that it could be legally harmful in the future. I've disagreed with you many times, but have never considered that you have blithely developed your position without thought.

DonMagee

01-15-2008, 12:17 PM

What if you were walking down a deserted road, except for some man walking a bit further ahead of you at a slower pace.
As you are in a hurry to get to a friends house since its cold outside and youve forgotten your gloves so you walk quite fast, with your hands in your pockets.
Now, the problem is, you have Tourette's syndrome, so now and then you get these involountary tics and curse obscenities.
Youre a little lost and thinks that maybe you should ask that chap up ahead for directions. But as you apporach, he spins around with a gun in his hands telling you to back off you drugged out junkie and before you can explain yourself he shoots you, not once or twice but empties his clip in you..

Why? because it was appearant that you was on drugs and intending to harm him and he has a legal right to kill you if he feels threatened.

I'm not saying you shouldnt be allowed to defend yourself, just make sure there's really no other options or explanations first. Not even the police shoots first and ask questions later.

And if you think me using Tourettes as a example is grasping for straws, what if the man following you is talking on a hands-free cellphone, or maybe he is mistaking you for someone else and as he comes closer he realises that "youre not Joey"..

Well, in my example (which I believe you are using for your example. I stated "You have changed your path a few times and are sure he is following you".

Just crossing the street a few times will tell if someone is after you, or simply the guy who rides the bus barking.

In the car case, the first thought wasn't "kill him!". First was "Wow, that guy has anger management issues." Then it went to "Is he following me?", then finally "Yes, he is following me, he is becoming more dangerous, what are my options?". Finally, we reach what I felt was the best course of action "I will go to someplace I know, someplace I can defend, and if he follows, gets out of his vehicle, ignores my warnings and approaches. I will defend myself." I just will not kid myself about what 'defending myself' means. To put it politely, it means neutralizing a threat. To put it blunt, kill the attacker before he kills you.

I'm sorry, I'm not going to be easily swayed that it is not justified within the realms of my states laws. If my state said I had a duty to attempt to flee, then I would attempt to flee. In fact, thinking back on it, I'm actually saying you should attempt to flee first. That is what the evasive driving and crossing the street/changing your route several times is for. The only exception is if I am in my home and someone is kicking in the door. Then there will be no attempt to flee, just an attempt to defend what is mine to defend.

Joseph Madden

01-15-2008, 12:26 PM

I would hope that the vast majority of people would react appropriately in "most" situations. Unfortunately we know from history that this isn't always the case. We can argue forever about what is the right course of action in any case. As Don stated earlier you have a choice to make and sometimes only a matter of seconds count between you or the other person taking that final step. What the outcome of that final step is will be decided by a jury of your peers or a judge if you decide to plead. With regards to Canadian law, being someone who has had the "Use of Force" tables placed in front of me, I know how far I can go. Breaking one arm if I'm attacked with a knife would be considered reasonable in most cases. If the person chooses to switch arms and attack me again and I break his other arm then I will probably be hit with an assault charge. This is merely an example under Canadian law. Some members of Canadian society will argue that no level of force is justified and you should die like a good sheep. I'm not one of them.

DonMagee

01-15-2008, 12:27 PM

No, I'm not, Don. I'm trying to point out that when you kill someone, it becomes a legal matter -- and that in legal matters, these "semantics" that you so disdain have real and serious consequences. You can blow off what I'm saying by calling it "just semantics" (it isn't, but let that go). On this forum, nobody's definition or interpretation "wins". In a court, things are different. There, other people's interpretation of a word like "threatened" will matter more than yours, and there most certainly is a "winning" definition.

Except what you are pointing out is already what I stated to be true. Thus you are really not pointing anything out. Just trying to make me seem as though I am not informed.

This is why it is an issue of semantics.

Apparently, I did not use the correct words to explain myself to you in a satisfactory way. Then, after I clarified this, for example, by defining what I mean by threatened. You use the previous words to attempt to cast doubt on my statements. For example you said "There, other people's interpretation of a word like "threatened" will matter more than yours, and there most certainly is a "winning" definition." See, this is a semantic argument. I have defined what I mean by threatened, but simply because I did not use the correct word, you claim my point is invalid. The argument therefor is not about my point, but on the words I decided to use. If you would like, I could re-write my posts with words more suited to your style of reading. I could say "If I felt someone was attempting to take my life" rather than "If I felt I was threatened".

In the end, it makes no difference. Even in court my choice of words can be explained. If I say "I felt threatened", the judge is going to say "Now jury, the definition of threatened is X and thus you can not use any other definition." Rather, my lawyer will probably ask exactly what I mean by that. (Or have already helped me clarify my testimony in a way that the jury could more readily understand.)

So again, I submit that your replies to my posts have added nothing to support them, nor have they add a counter argument to them. You have simply restated things I have already said while trying to make it seem like I did not state them.

And yes, I do like to argue for the sake of argument. I find it fun. And yes I have thought that maybe I need some kind of therapy for it.

Ron Tisdale

01-15-2008, 12:35 PM

And yes, I do like to argue for the sake of argument. I find it fun. And yes I have thought that maybe I need some kind of therapy for it.

Dude, I'm sooo glad you're back! :D

Best,
Ron

Michael Hackett

01-15-2008, 12:42 PM

David,

The short answer is that one's presumed martial arts ability means nothing unless the force used is taken too far for the circumstances. That holds true for anyone, regardless of formal training. That said, a skilled martial artist will probably be subjected to closer scrutiny.

A recent case here in San Diego area is dragging through the courts now. A professional MMA fighter got into some sort of a tussle outside a bar and "choked out" his adversary. He has been charged with a felony assault. I know only of the news accounts so I don't know who the aggressor was, the other circumstances, or even whether he used a rear naked choke or he strangled the guy. It seems to me that using a rear naked choke is more humane than punching someone senseless, but as I said, I don't know any of the details that led to the charging.

lbb

01-15-2008, 12:46 PM

Except what you are pointing out is already what I stated to be true. Thus you are really not pointing anything out. Just trying to make me seem as though I am not informed.

I give up. You know it all. You know what I'm thinking and what I'm doing and why I'm doing it. This is pointless, and I'm done here.

jonreading

01-15-2008, 12:52 PM

In Georgia, I believe we have the right to defend ourselves if we perceive ourselves [or family] to be in danger of bodily harm. For example, this means that I could defend myself if I felt my life, or the life of a loved one was in danger. Clearly, this is a state of mind rule. Property theft is not a valid cause for violence, but theft with intent to cause harm would be.

For example, home invasion is big in Atlanta right now. Perp breaks into a house, holds family hostage, robs the family of property and cash, and usually commits a violent crime (rape, assault, murder). Many of these victims comply during the theft because the believe the perp will simply leave after robbing them. Unfortunately this is untrue and several people have already been hurt badly under this mentality.

As I train, I try to understand how I can more clearly communicate to potential perpetrators that I am not a victim. I find we spend time finding reasons to justify why something not bad is going to happen to us. If we spend the same time observing our surroundings and keeping up our guard against bad things, we may find they happen less.

While many readers did not respond to Don's post, I think there are some good points to understand:
1. Identify and understand the threat. A van was acting inappropriately by following Don.
2. Prepare for action. Don choose a path to draw out the intentions of the driver, and prepared himself to act.
3. Commit to action. Don was committed to protecting himself.
You can doubt his reasons and criticize his decision, but he was more prepared for the situation than most of us would be.

As a personal note, I see more comments attacking the situations than the laws. Observation is critical to many of these posts. For example, someone following me with their hands in their pockets may not be a big deal if the weather is cold. But what if the temperature is warm or hot? Someone may be driving the same direction as me and fighting with something on the phone. But what if they are screaming at me? The whatif game is tough, and I do not see us benefiting on this thread by taking the time to whatif eachother to death.

Great posts... enjoying the read.

Joseph Madden

01-15-2008, 01:01 PM

Excellent point Jon. We've also had several violent home invasions north of the border and people have been assaulted and/or have died.
Deciding to protect ones self is never an easy choice. But it should be considered the right one.

gregg block

01-15-2008, 04:51 PM

First survive the attack. A dead man in court has no defense either!

Joseph Madden

01-15-2008, 06:19 PM

:mad: This is slightly off topic, but pertains to certain portion of the Canadian public being sheep-like. Today in the heart of the city of Toronto, a young woman was attacked and robbed by two pieces of S&*% on a streetcar. They wanted her money and then started punching her in the face. When other passengers tried to intervene, the creeps told them to back off because they had a gun. They got away.
This is the level that Toronto has come to. People bred to be frightened. Its obvious that these two turds didn't have a firearm because they assaulted this young woman with their fists. The truly sad part is if someone had the balls to permanently damage these two pieces of garbage they would have been in trouble with our justice system. Come visit Toronto. Especially if your a criminal. The pickins are easy.

kironin

01-16-2008, 06:45 AM

In my state, you can kill a man if you feel he is threatening you, your property, or others. So you can kill a man for taking your wallet.

Indiana sounds similar to Texas which broadened the law 2007 though maybe Indiana goes farther if you can actually interpret it that "you can kill a man for taking your wallet.". About the original post, give the often publicly stated goals of Aikido, I am not too worried in Texas that if I had to use Aikido-like techniques to defend myself that it would be ever seen as excessive force.

For the first time, the self-defense legislation extends the "castle doctrine" beyond homes to include occupied vehicles and the workplace. It also creates a new presumption about when a person can use deadly force and repeals the legal concept that a person must retreat.

On Tuesday, co-sponsors of the new self-defense law lined up two and three deep at a Capitol news conference after the House gave final approval of Senate Bill 378.

"With the enactment of this bill, law-abiding Texas citizens can defend themselves against criminal attack in their home, car or business without having to worry they will be prosecuted," said Rep. Joe Driver, R-Garland, the lead House sponsor.

Austin Reps. Dawnna Dukes and Donna Howard, both Democrats, voted against the bill. They opposed it because prosecutors opposed it and because of what Dukes said would be a heightened use of force.

The initial author, Sen. Jeff Wentworth, whose San Antonio district includes parts of South Austin, said in a phone interview that he introduced the legislation after reading news reports about a similar law passed in Florida in 2005.

Wentworth said he wrongly believed Texans already had the same rights as Floridians.

In 1973, during a rewrite of the penal code, the Legislature imposed a duty for a person facing criminal attack to retreat if a reasonable person would do so under those circumstances. In 1995, the Legislature added an exception to the need to retreat if the attack occurred in a person's home.

Wentworth said he found that approach wrong-headed.

"I do not believe that the law should require me to wait and decide if someone who is breaking into my home or office or attempting to hijack my car intends to harm me or a member of my family," he said last fall. "The law should allow me to use immediate force to protect myself, my family and my property without fear of being charged with a crime or being sued."

Many prosecutors, however, opposed the legislation.

Rob Kepple, executive director of the Texas District and County Attorneys Association, said some prosecutors worried about creating a new presumption of self-defense that criminals might now try to adopt.

Under the measure, deadly force is presumed to be reasonable if a person unlawfully enters or attempts to enter an occupied home, vehicle or a place of business or employment.

Kepple said a criminal could claim he shot someone because he was being threatened.

"You could be giving a new legal defense to criminals," he said.

Furthermore, Kepple said, some prosecutors felt the bill was a solution looking for a problem.

"The concern was whether it has been demonstrated that a person has been wrongly prosecuted" for defending themselves, Kepple said.

Driver said the legislation includes safeguards to limit the new defense to law-abiding citizens. For example, a person using deadly force cannot have provoked the other person, must have a right to be there and cannot be committing a crime.

Austin defense lawyer Joe Turner said a person responding to an attack is not thinking about the subtle changes in the self-defense law. But he said the legislation will add new protections against prosecution or being sued.

"We spend a great deal of our lives in our cars and our offices," Turner said. "There's something un-Texan, un-American, about having to run from your office."

On another front, Senate Bill 534 prohibits public or private employers from discharging or disciplining employees who keep a concealed weapon locked in their vehicle parked in the employer's parking lot. The employee must have a license to carry the weapon and provide a copy to the employer.

The author, Sen. Glenn Hegar, R-Katy, said some employees have to commute long distances to work and feel safer with a weapon in their vehicle. He said he had reports of some employers disciplining employees who had licences to carry concealed weapons.

Joseph Madden

01-25-2008, 10:21 AM

From Canadian Law & Self-Defence by Ted Truscott, there is a fine line between self-defence and criminal assault, especially by martial artists. In Canada, being a martial artist brings you into a higher standard for use of force then the general populace. Although the same rules may apply, you must be able to justify the techniques used. Under the definition provided by Dreager and Smith, being a martial artist who practices a do rather than a jutsu, you may find it harder to justify your actions, since a jutsu is defined as; training for the development of the right frame of mind and technical skills by which to defend oneself, combative, practical and vigorous....producing the optimum development of fighting skills.
Whereas a do is defined as; training from a concern with a spiritual discipline through which the individual elevates himself mentally and physically in search of self-perfection. Note the last word "self-perfection". Under the law as it stands currently in Canada, someone who is pursuing self perfection may be considered by the courts as someone who should know better or have a heightened sense of what is the right thing to do, whereas someone who practices a jutsu is only seeking ways to be a better warrior although a do could almost certainly fall under that definition as well. Very fine line.

Ron Tisdale

01-25-2008, 10:54 AM

Made even finer by the fact that Draeger's bifurcation is highly artificial. At the time, that bifurcation was widely accepted in the west. Not so much any more, despite his being way ahead of his time and quite a pioneer.

Best,
Ron

Joseph Madden

01-25-2008, 12:45 PM

True Ron. The definitions set by Draeger are from 1969. A lot has changed since then. I agree about him being a pioneer.

Nuff said.

Joe

Pierre Kewcharoen

01-25-2008, 03:36 PM

From what I hear, NJ has no self defense law. So if somebody starts a fight with you and your hurt them protecting yourself, then both of you are going to jail. I have to check if this is true. If that's the case, then we are screwed in Jersey.

Joseph Madden

01-25-2008, 04:15 PM

Pierre,
Did u know that the non-lethal Tazer is also illegal in Jersey. Kinda hard to defend oneself huh?(there illegal here too)

Michael Hackett

01-25-2008, 08:13 PM

A new case just reported out from the 9th Circuit Court of Appeals which covers many of the western states of the US. Price v. Sery is the case and actually deals with a police-involved shooting and really applies only to government agents, BUT it does have some interesting language in it relating to the issue of state of mind of the actor versus the "objectively reasonable" view. As I interpret what the justices said, whatever is in your mind is relatively unimportant if the circumstances facing you are such that there was (or was not) an objectively reasonable threat to you. That is, even if you thought you were in grave danger, was your perception of that threat an objectively reasonable one?

I suggest that we will eventually see similar language in the near future dealing with a civilian self-defense type of case. If you choose to read the case, be sure and read the dissent as well - very informative.

As a layman, the issue is still clear as mud.

Rupert Atkinson

01-25-2008, 09:12 PM

In my state, you can kill a man if you feel he is threatening you, your property, or others. So you can kill a man for taking your wallet.

I think your state has it right.

Pierre Kewcharoen

01-25-2008, 10:54 PM

Pierre,
Did u know that the non-lethal Tazer is also illegal in Jersey. Kinda hard to defend oneself huh?(there illegal here too)

Everything is illegal in Jersey!

Niadh

01-25-2008, 11:20 PM

Jon,
I belive you in Georgia have a castle law. I was just down there visiting a friend and attending a tactical pistol course. I am not up on Georgia laws, but he is pretty well versed having done research to protect himself from litigation in the event he and his family are one of those whose house is broken into. Next time I get down there, I'll try to find your dojo. I passed one on monday just before my flight back, but it had been a full weekend.

Don,
Observe, Asses, Plan, Implement.
Yep, seems that you were using our most important weapon. yes folks belive it or not it is not a "smart gun" but our head.
People,
We, individuals, are the ONLY ones responsible for our safety. NEWS FLASH. If you are not aware, (yes Don i know you wrote this, I am expounding on it) THE POLICE ARE UNDER NO OBLIGATION AND ARE NOT REQUIRED TO PROTECT ANY IDIVIDUAL. THEIR JOB IS TO UPHOLD THE LAWS, ENFORCE THE LAWS, AND PROTECT SOCIETY "AS A WHOLE". AS HAS BEEN UPHELD IN MANY COURT CASES, UNLESS PROMISE OF PROTECTION HAS BEEN GIVEN TO THE PERSON OR PERSONS IN QUESTION.

So, even if the decision had been to drive to a police station - THEY WERE UNDER NO LEGAL OBLIGATION TO PROTECT DON AND HIS WIFE.
Each person must make their own choice at the time. Laws being what they are the chips will fall where they will. Make the best choice you can based on what you know to be true at the time. As you said Don, don't second guess. I have to agree with Jon here, I may or may not make the same choice as you, but you were thinking it threw. Kudos to you for that.

Asz for the "shoot him for trying to steal my wallet" I took this as an oversimplification and "quirky" way of saying, "hey, we have a castle law here and you all thugs better realize it," so for those who think jumping on this for his attitude, maybe you ought to be a bit less literal.

I gotta get out of this archaic, Canadian like (sorry, your words Joseph ) herd mentality of the north east. Out to a shall issue state with castle laws where i can defend myself and my family and not have to assume that by trying to do so i will automatically be judged as wrong by those who feel that, since the world should be filled with love and peace it must be.
I'm through with my diatribe. If I have offended, well these are MY beliefs, so you don't have to like them.

akiy

01-27-2008, 02:27 PM

Hi folks,

Can we please try to make the discussion explicitly relevant to aikido?